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Terms and Conditions

﻿Mobile Data Anywhere Subscription Agreement

Mobile Data Anywhere Pty Ltd

TERMS OF USE:

BY CLICKING THE “I ACCEPT” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TOTHE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF MOBILE DATAANYWHERE ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, THE “SERVICE”). IFYOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUREPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS,IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVESUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECTTHE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.

Welcome

As part of the Mobile Data Anywhere hosted Service, Mobile Data Anywhere Pty Ltd willprovide you with use of the Service, including a browser interface and data encryption,transmission, access and storage. Your registration for, or use of, the Service shall bedeemed to be your agreement to abide by this Agreement including any materials availableon the Mobile Data Anywhere website incorporated by reference herein, including but notlimited to Mobile Data Anywhere privacy and security policies.

1. Definitions and Interpretation

The following are the standard terms and conditions under which Mobile Data Anywhere PtyLtd (“the Company”) sells computer hardware, licences computer software and suppliesrelated services. These Terms and Conditions shall, unless otherwise expressly stated inwriting, apply to the subject matter of any agreement in respect thereof.

1.1 In these Terms and Conditions, unless the context otherwise requires, the followingexpressions have the following meanings:

“Acceptance Certificate” – means a document to be used in conjunction with the supply ofProducts to be signed by the Customer on delivery indicating their acceptance of thatdelivery, or in the case of a service, the act of using that service in a productionenvironment;

“Agreement” – means any agreements entered into between the Company and a Customer towhich these standard Terms and Conditions apply;

“Customer” - means the individual, business, or other organisation with whom the Companycontracts;

“Supplier” – means any supplier of Products or Services to the Company;

“Products” – means computer hardware, software and associated equipment that may besupplied by the Company; and

“Services” – means any service supplied by the Company.

1.2 Any reference to a day or days refers to business days – that is any day which is nota weekend or public or bank holiday in Australia.

1.3 The headings in these Terms and Conditions are for convenience only and shall notaffect their interpretation.

2. Privacy & Security; Disclosure

Mobile Data Anywhere Pty Ltd’s privacy and security policies may be viewed athttp://www.mobiledataanywhere.com.au. Mobile Data Anywhere Pty Ltd reserves the right tomodify its privacy and security policies in its reasonable discretion from time to time.

3. License Grant & Restrictions

Mobile Data Anywhere Pty Ltd hereby grants you a non-exclusive, non-transferable,worldwide right to use the Service, solely for your own internal business purposes,subject to the terms and conditions of this Agreement. All rights not expressly grantedto you are reserved by Mobile Data Anywhere Pty Ltd and its licensors.

You may not access the Service if you are a direct competitor of Mobile Data Anywhere PtyLtd, except with Mobile Data Anywhere Pty Ltd’s prior written consent. In addition, youmay not access the Service for purposes of monitoring its availability, performance orfunctionality, or for any other benchmarking or competitive purposes.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute orotherwise commercially exploit or make available to any third party the Service or theContent in any way; (ii) modify or make derivative works based upon the Service or theContent; (iii) create Internet “links” to the Service or “frame” or “mirror” any Contenton any other server or wireless or Internet-based device; or (iv) reverse engineer oraccess the Service in order to (a) build a competitive product or service, (b) build aproduct using similar ideas, features, functions or graphics of the Service, or (c) copyany ideas, features, functions or graphics of the Service. User licenses cannot be sharedor used by more than one individual User but may be reassigned from time to time to newUsers who are replacing former Users who have terminated employment or otherwise changedjob status or function and no longer use the Service.

You may use the Service only for your internal business purposes and shall not: (i) sendspam or otherwise duplicative or unsolicited messages in violation of applicable laws;(ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawfulmaterial, including material harmful to children or violative of third party privacyrights; (iii) send or store material containing software viruses, worms, Trojan horses orother harmful computer code, files, scripts, agents or programs; (iv) interfere with ordisrupt the integrity or performance of the Service or the data contained therein; or (v)attempt to gain unauthorised access to the Service or its related systems or networks.

4. Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abideby all applicable local, national and foreign laws, treaties and regulations inconnection with your use of the Service, including those related to data privacy,international communications and the transmission of technical or personal data. Youshall: (i) notify Mobile Data Anywhere Pty Ltd immediately of any unauthorised use of anypassword or account or any other known or suspected breach of security; (ii) report toMobile Data Anywhere Pty Ltd immediately and use reasonable efforts to stop immediatelyany copying or distribution of Content that is known or suspected by you or your Users;and (iii) not impersonate another Mobile Data Anywhere Pty Ltd user or provide falseidentity information to gain access to or use the Service.

5. Account Information and Data

Mobile Data Anywhere Pty Ltd does not own any data, information or material that yousubmit to the Service in the course of using the Service (”Customer Data”). You, notMobile Data Anywhere Pty Ltd, shall have sole responsibility for the accuracy, quality,integrity, legality, reliability, appropriateness, and intellectual property ownership orright to use of all Customer Data, and Mobile Data Anywhere Pty Ltd shall not beresponsible or liable for the deletion, correction, destruction, damage, loss or failureto store any Customer Data. In the event this Agreement is terminated (other than byreason of your breach), Mobile Data Anywhere Pty Ltd will make available to you a file ofthe Customer Data within 30 days of termination if you so request at the time oftermination. Mobile Data Anywhere Pty Ltd reserves the right to withhold, remove and/ordiscard Customer Data without notice for any breach, including, without limitation, yournon-payment. Upon termination for cause, your right to access or use Customer Dataimmediately ceases, and Mobile Data Anywhere Pty Ltd shall have no obligation to maintainor forward any Customer Data.

6. Intellectual Property Ownership

Mobile Data Anywhere Pty Ltd alone (and its licensors, where applicable) shall own allright, title and interest, including all related Intellectual Property Rights, in and tothe Mobile Data Anywhere Pty Ltd Technology, the Content and the Service and anysuggestions, ideas, enhancement requests, feedback, recommendations or other informationprovided by you or any other party relating to the Service. This Agreement is not a saleand does not convey to you any rights of ownership in or related to the Service, theMobile Data Anywhere Pty Ltd Technology or the Intellectual Property Rights owned byMobile Data Anywhere Pty Ltd. The Mobile Data Anywhere Pty Ltd name, the Mobile DataAnywhere Pty Ltd logo, and the product names associated with the Service aretrademarks of Mobile Data Anywhere Pty Ltd or third parties, and no right or license isgranted to use them.

7. Charges and Payment of Fees

Charges are monthly. You shall pay all fees or charges to your account in accordance withthe fees, charges, and billing terms in effect at the time a fee or charge is due andpayable. Payments for the service must be made monthly in advance unless otherwisemutually agreed upon in an Order Form or through the Online Order Centre. All paymentobligations are non-cancellable and all amounts paid are non-refundable. You areresponsible for paying for all User licenses ordered for the entire License Term, whetheror not such User licenses are actively used. You must provide Mobile Data Anywhere Pty Ltdwith valid credit card or approved purchase order information as a condition to signingup for the Service. An authorised License Administrator may add licenses by executing anadditional written Order Form or using the Online Order Centre. Added licenses will besubject to the following: (i) added licenses will be coterminous with the pre-existingLicense Term (either Initial Term or renewal term); (ii) the license fee for the addedlicenses will be the then current, generally applicable license fee; and (iii) licensesadded in the middle of a billing month will be charged in full for that billing month.Mobile Data Anywhere Pty Ltd reserves the right to modify its fees and charges and tointroduce new charges at any time, upon at least 30 days prior notice to you, whichnotice may be provided by e-mail. All pricing terms are confidential, and you agree notto disclose them to any third party.

8. Billing and Renewal

Mobile Data Anywhere Pty Ltd charges and collects monthly in advance for use of theService. Mobile Data Anywhere Pty Ltd will automatically issue an invoice for each monthupon receipt of payment. Mobile Data Anywhere Pty Ltd will automatically renew and billyour credit card billing period on the subsequent anniversary or as otherwise mutuallyagreed upon. The renewal charge will be equal to the then-current number of total Userlicenses times the license fee in effect during the prior term, unless MobileData Anywhere Pty Ltd has given you at least 30 days prior written notice of a feeincrease, which shall be effective upon renewal and thereafter. Fees for other serviceswill be charged on an as-quoted basis. Mobile Data Anywhere Pty Ltd’s fees are exclusiveof all taxes, levies, or duties imposed by taxing authorities, and you shall beresponsible for payment of all such taxes, levies, or duties.

You agree to provide Mobile Data Anywhere Pty Ltd with complete and accurate billing andcontact information. This information includes your legal company name, street address,e-mail address, and name and telephone number of an authorised billing contact andLicense Administrator. You agree to update this information within 30 days of any changeto it. If the contact information you have provided is false or fraudulent, MobileData Anywhere Pty Ltd reserves the right to terminate your access to the Service inaddition to any other legal remedies.

If you believe your bill is incorrect, you must contact us in writing within 30 days ofthe invoice date of the invoice containing the amount in question to be eligible toreceive an adjustment or credit.

9. Non-Payment and Suspension

In addition to any other rights granted to Mobile Data Anywhere Pty Ltd herein, MobileData Anywhere Pty Ltd reserves the right to suspend or terminate this Agreement and youraccess to the Service if your account becomes delinquent (falls into arrears). Delinquentinvoices (accounts in arrears) are subject to interest of 3.0% above the AustralianReserve Bank base rate per month on any outstanding balance, or the maximum permitted bylaw, whichever is less, plus all expenses of collection. You will continue to be chargedfor User licenses during any period of suspension. If you or Mobile Data Anywhere Pty Ltdinitiates termination of this Agreement, you will be obligated to pay the balance due onyour account computed in accordance with the Charges and Payment of Fees section above.You agree that Mobile Data Anywhere Pty Ltd may charge such unpaid fees to your deposit,credit card or otherwise bill you for such unpaid fees.

Mobile Data Anywhere Pty Ltd reserves the right to impose a reconnection fee in the eventyou are suspended and thereafter request access to the Service. You agree and acknowledgethat Mobile Data Anywhere Pty Ltd has no obligation to retain Customer Data and that suchCustomer Data may be irretrievably deleted if your account is 30 days or more delinquent.

10. Termination upon Expiration/Reduction in Number of Licenses

This Agreement commences on the Effective Date. The Initial Term shall be for two yearsor as otherwise mutually agreed upon in an Order Form, commencing on the date you agreeto pay for the Service by completing the subscription form, or on the start date of theOrder Form. Upon the expiration of the Initial Term, this Agreement will automaticallyrenew for successive renewal terms of one year, at Mobile Data Anywhere Pty Ltd’s thencurrent fees. Either party may terminate this Agreement or reduce the number of licenses,effective only upon the expiration of the then current License Term, by notifying theother party in writing at least 6 months prior to the date of the requested termination.In the event this Agreement is terminated (other than by reason of your breach), MobileData Anywhere Pty Ltd will make available to you a file of the Customer Data within 30days of termination if you so request at the time of termination. You agree andacknowledge that Mobile Data Anywhere Pty Ltd has no obligation to retain the CustomerData, and may delete such Customer Data, more than 30 days after termination.

11. Termination for Cause

Any breach of your payment obligations or unauthorised use of the Mobile Data Anywhere PtyLtd Technology or Service will be deemed a material breach of this Agreement. MobileData Anywhere Pty Ltd, in its sole discretion, may terminate your password, account or useof the Service if you breach or otherwise fail to comply with this Agreement. You agreeand acknowledge that Mobile Data Anywhere Pty Ltd has no obligation to retain the CustomerData, and may delete such Customer Data, if you have materially breached this Agreement,including but not limited to failure to pay outstanding fees, and such breach has notbeen cured within 30 days of notice of such breach.

12. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enterinto this Agreement. Mobile Data Anywhere Pty Ltd represents and warrants that it willprovide the Service in a manner consistent with general industry standards reasonablyapplicable to the provision thereof and that the Service will perform substantially inaccordance with the online Mobile Data Anywhere Pty Ltd help documentation under normaluse and circumstances. You represent and warrant that you have not falsely identifiedyourself nor provided any false information to gain access to the Service and that yourbilling information is correct.

13. Mutual Indemnification

You shall indemnify and hold Mobile Data Anywhere Pty Ltd, its licensors and each suchparty’s parent organisations, subsidiaries, affiliates, officers, directors, employees,attorneys and agents harmless from and against any and all claims, costs, damages,losses, liabilities and expenses (including attorneys’ fees and costs) arising out of orin connection with: (i) a claim alleging that use of the Customer Data infringes therights of, or has caused harm to, a third party; (ii) a claim, which if true, wouldconstitute a violation by you of your representations and warranties; or (iii) a claimarising from the breach by you or your Users of this Agreement, provided in any such casethat Mobile Data Anywhere Pty Ltd (a) gives written notice of the claim promptly to you;(b) gives you sole control of the defence and settlement of the claim (provided that youmay not settle or defend any claim unless you unconditionally release Mobile Data AnywherePty Ltd of all liability and such settlement does not affect Mobile Data Anywhere PtyLtd’s business or Service); (c) provides to you all available information and assistance;and (d) has not compromised or settled such claim.

Mobile Data Anywhere Pty Ltd shall indemnify and hold you and your parent organisations,subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmlessfrom and against any and all claims, costs, damages, losses, liabilities and expenses(including attorneys’ fees and costs) arising out of or in connection with: (i) a claimalleging that the Service directly infringes a copyright, or a trademark of a thirdparty; (ii) a claim, which if true, would constitute a violation by Mobile Data AnywherePty Ltd of its representations or warranties; or (iii) a claim arising from breach ofthis Agreement by Mobile Data Anywhere Pty Ltd; provided that you (a) promptly givewritten notice of the claim to Mobile Data Anywhere Pty Ltd; (b) give Mobile Data AnywherePty Ltd sole control of the defence and settlement of the claim (provided that MobileData Anywhere Pty Ltd may not settle or defend any claim unless it unconditionallyreleases you of all liability); (c) provide to Mobile Data Anywhere Pty Ltd all availableinformation and assistance; and (d) have not compromised or settled such claim. MobileData Anywhere Pty Ltd shall have no indemnification obligation, and you shall indemnifyMobile Data Anywhere Pty Ltd pursuant to this Agreement, for claims arising from anyinfringement arising from the combination of the Service with any of your products,service, hardware or business process(s).

14. Disclaimer of Warranties

Mobile Data Anywhere Pty Ltd AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, ORGUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY,ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. Mobile Data Anywhere Pty Ltd ANDITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE TIMELY,UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE,SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANYSTORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES,INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEETYOUR REQUIREMENTS OR EXPECTATIONS, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THESERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALLCONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONSAND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUTLIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ORNON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENTPERMITTED BY APPLICABLE LAW BY Mobile Data Anywhere Pty Ltd AND ITS LICENSORS.

15. Internet Delays

Mobile Data Anywhere Pty Ltd’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHERPROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. MOBILEDATA ANYWHERE PTY LTD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHERDAMAGE RESULTING FROM SUCH PROBLEMS.

16. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BYAND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTGIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLETO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OROTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHERECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDINGBUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINEDFROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESSOF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCHPARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17. Arbitration

Subject to the agreement of the parties, if any dispute or difference shall arise betweenthe Company and the Customer on any matter relating to or arising out of the Agreement,such a dispute shall be referred to the arbitration of a single Arbitrator to be agreedupon by the parties or failing agreement to be appointed by the then President of the LawSociety of Australia.

18. Proper Law and Jurisdiction

The Agreement shall be governed by and construed in accordance with the laws ofAustralia. Any dispute concerning it or its interpretation shall be adjudicated in thatJurisdiction.

19. Notice

Mobile Data Anywhere Pty Ltd may give notice by means of a general notice on the Service,electronic mail to your e-mail address on record in Mobile Data Anywhere Pty Ltd’s accountinformation, or by written communication sent by first class mail or pre-paid post toyour address on record in Mobile Data Anywhere Pty Ltd’s account information. Such noticeshall be deemed to have been given upon the expiration of 48 hours after mailing orposting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sentby email). You may give notice to Mobile Data Anywhere Pty Ltd (such notice shall bedeemed given when received by Mobile Data Anywhere Pty Ltd) at any time by any of thefollowing: letter delivered by nationally recognized overnight delivery service or firstclass postage prepaid mail to Mobile Data Anywhere Pty Ltd, PO BOX, 9494, Wynnum Plaza,QLD, 4178.

20. Modification to Terms

Mobile Data Anywhere Pty Ltd reserves the right to modify the terms and conditions of thisAgreement or its policies relating to the Service at any time, effective upon posting ofan updated version of this Agreement on the Service. You are responsible for regularlyreviewing this Agreement. Continued use of the Service after any such changes shallconstitute your consent to such changes.

21. Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of MobileData Anywhere Pty Ltd but may be assigned without your consent by Mobile Data Anywhere PtyLtd to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor bymerger. Any purported assignment in violation of this section shall be void. Any actualor proposed change in control of you that results or would result in a direct competitorof Mobile Data Anywhere Pty Ltd directly or indirectly owning or controlling 50% or moreof you shall entitle Mobile Data Anywhere Pty Ltd to terminate this Agreement for causeimmediately upon written notice.